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that the body politic had the same control over the body corporate which the creator has over the natural body.1

“ The greater power includes the less, and the power of life and death includes the power of prescribing the terms on which such life should exist." In short, the counsel for the state asserted, in the broadest and strongest form, over all corporations chartered by the state, absolute powers, by virtue of this constitutional reservation.

The decision of the court was delivered on July 4, by Judge Drummond, who said that there had not been time to prepare an opinion, but that the court refused the injunction and announced their conclusions

1. That the court had jurisdiction of the case, and that it was not necessary to wait for the law to be put into full operation before making this application to prevent threatened injury.

2. That the Act of March 11th was not repealed by the Act of March 12th.

3. That the charters of railroad corporations under the constitution of Wisconsin may be altered or repealed by the legislature at any time after their passage. In legal effect, therefore, there was incorporated in all the numerous grants under which the Chicago and Northwestern Railway Company now claims its rights of franchise and property in this state, the foregoing condition contained in the constitution. It became a part, by operation of law, of every contract or mortgage made by the company or by any of its numerous predecessors under which it claims. All share and bond holders took their stock or other securities subject to this paramount condition, and of which they in law had notice. If the corporation, by making a contract or a deed of trust of its property, could clothe its creditors “ with an absolute, unchangeable right, it would enable the corporation by its own act to abrogate one of the provisions of the fundamental law of the state.”

4. That the same principle applies to authority given by the legislature to corporations of other states.

5. That the legislature has power to alter the terms of a corporate charter as to rates for transit of persons and property exclusively within the limits of this state, and this power is not affected by any consequent destruction of value in the corporate property.

i Charles River Bridge v. Warren Bridge, 11 Pet. 420, 455; Providence Bank o. Billings, 4 Pet. 514.

6. That the fact that grants of land were made to the state by Congress, to encourage the building of the roads, does not affect

this power.

7. That the court does not pass upon questions of inter-state commerce which may be affected under this act, but reserves them for future argument.

The motion for preliminary injunction having been overruled, it was finally arranged by the parties and the court, in order to settle speedily the questions raised, that the defendants should demur to the bill, and the demurrer be sustained, and the bill dismissed, and thereupon an appeal be taken to the Supreme Court of the United States. This course was followed, and the case is expected to be heard in the October term at Washington.

How far this decision is to be regarded as pro formâ, and rendered in accordance with the general practice of courts of inferior jurisdiction to rule in favor of the constitutionality of all legislation, is not clear. The brevity of the decision, and its avoidance of discussion of the points raised in argument, renders it not improbable that the court considered it expedient to escape the manifest danger of collision between the United States authority and the State of Wisconsin, in a time of popular excitement, by making that very proper presumption, especially as that jurisdiction of the court and its power to enjoin state officers was emphatically denied by the state government. However that may be, the settlement of these questions, which is of great moment, is undoubtedly much hastened by the course which the court pursued.

We understand, also, that the validity of the law will be tested in another case by writ of error from one of the state courts. raises the question upon facts arising at a junction of two roads, where, under the Potter law, the first road is entitled to charge for the miles travelled on its track the entire sum which the shipper is bound to pay for the whole distance. The second road forwarded the goods to the consignee, who refused to pay any thing more, and replevied. Under the Potter law, the second road was liable to penalties for charging more than Potter rates, and for refusing to transport at those rates, yet under those rates was entitled to nothing for its service. No new principle is involved ; but the validity of the law is thus raised in a case where the law permits the road to charge no compensation whatever for service rendered, while it, at the same time, requires the company to render that service.


After the denial of an injunction, by the United States Court, in the suit of Piek et al., to stop prosecutions by the state officers for violation of the Potter act, the Attorney-General retaliated by bringing suits in the Supreme Court of Wisconsin against the Chicago, Milwaukee, and St. Paul Railway Company, and the Chicago and Northwestern Railroad Company; setting forth that the defendants were Wisconsin corporations, operating railroads in that state, and were bound to obey the Potter act, but were operating their roads in direct violation of that act, and praying that the court would issue an injunction forbidding the companies to disobey the law.

This case was brought before the full court at Madison early in August. Besides the constitutionality of the new legislation, the original jurisdiction of the Supreme Court over an application for a preliminary injunction was disputed, and several collateral issues raised, upon which it seems not improbable that this case may be disposed of without a decision on the main question. The courts still retain the case under advisement at this time of writing.

Aside from the great question and the local question under Wisconsin statutes, the application exhibits a peculiarly American idea of equity jurisdiction. The state has passed a law, and amply fortified it by fines and penalties. The validity of that law is strenuously denied, on the ground that it impairs the franchises and legal rights of certain corporations; and it is shown to be injurious, if not destructive, in its practical effects. There is apparently an ample and complete remedy at law, not only in the provisions of the act itself, but, if they are insufficient, by quo warranto. Yet a great state seeks to invoke this remarkable exercise of chancery power, in order to forbid its citizens to disobey its own law.

The difference between the careful mode in which the British Parliament, unhampered in its action by constitutional provisions protecting contracts, deals with corporate rights, and regulates railway tolls, and the hasty, reckless way in which this Wisconsin law was passed, and in which American statutes are too often

1 Attorney-General v. Utica Insurance Company, 2 John. Ch. 370; AttorneyGeneral ». Bank of Niagara, Hopkins, 354; Smith v. Lockwood, 13 Barb. 209; City of Hudson v. Thorne, 7 Paige, 261; Attorney General v. Tudor Ice Co., 104 Mass. 239.

made, is well shown in the English Railway Act of 1844.

It substantially provides, that, where the clear, annual profits divisible upon the subscribed and paid-up capital of any railway to be thereafter constructed (not attempting to interfere with those previously chartered) upon the average of the three last and preceding years shall equal or exceed the rate of £10 on every £100 of paid-up capital stock, it shall be lawful for the Lords Commissioners of Her Majesty's Treasury, subject to the provisions thereinafter contained, upon giving the company three calendar months' notice of their intentions so to do, to revise the scale of tolls, fares, and charges limited by the act or acts relating to such railways, and to fix a new scale, which, in the judgment of the commissioners, shall be likely to reduce the said divisible profits to the rate of £10 in £100; provided, however, that they shall not do this unless the reduction is accompanied by a guarantee that the divisible profits, in case of any deficiency therein, shall be annually made good to the said road of £10 for every £100 of the capital stock ; and provided, also, that the scale, so revised, shall not be again revised, or such guarantee withdrawn, otherwise than with the consent of the company for a further period of twentyone years.

“ Compare," said Mr. Stoughton, in his argument, “ this careful and just mode of dealing by an imperial power with corporations thereafter to be formed, with the mode attempted to be exercised for this destruction of railroad companies, long previously created by the laws of Wisconsin. In the one instance, we find the most careful and conscientious care of the property of the stockholders ; in the other, a state which has within its borders an immense capital, attracted thereto by pledges of protection,— capital which has enriched the state by creating villages and cities, quadrupling the value of its farming lands, and conferring upon it a prosperity which nothing but foreign capital could have created,- attempting to deal with such capital by methods which amount to nothing short of confiscation ; restrained by no sense of duty, by no obligation of contract ; seizing upon corporate property and franchises, without compensation ; appropriating them, in substance, for the benefit of its citizens at large.”

We have now shown the present condition of this important controversy, and the arguments urged on both sides. We reserve discussion of the questions involved for a future article.

11 Shelford on Railways, 40.


On the 2d of June, 1825, the Massachusetts Hospital Life Insurance Company, “in consideration of the principal sum of $100,000 received by them of Nathaniel Curtis and Isaac Clapp, trustees of Robert Roberts, of Boston, in the State of Massachusetts, iri trust,” executed a certain contract to the following effect. The company agreed to manage the property for one half per centum per annum, and to pay over the interest received, less charges, to the said Robert Roberts during his life. And it further agreed to pay over the principal sum (less any amounts lost without the fault of the company), on the decease of the said Roberts, to his executors or administrators, “in trust for the special use and benefit of any child or children of said Robert Roberts : if one only, in trust for his or her use and benefit; if more than one, for their use and benefit equally, the legal representatives to take their parents' share ; and in case the said Robert Roberts shall die without leaving any issue, then at his decease to pay said principal sum to his mother, Eliza Roberts, for her own use; but in case the said Robert Roberts shall die without lawful issue, and his said mother shall die before him, then at his decease to pay said sum to his executor or executors, administrator or administrators, in trust for the use of his heirs-at-law and the heirs-at-law of his said mother, equally to be divided between them."

The court says, “ The source from which Curtis and Clapp received this sum is not directly stated in the report; but the only fair inference from the facts stated is, that it was a part of the estate of Robert Roberts, Jr., which came to him by inheritance from his father. For the purposes of this suit, the sum deposited is to be regarded as deposited by Robert Roberts, Jr.”

The report shows that the Robert Roberts of the trust was the sole heir-at-law of Robert Roberts, Sen., who died about Feb. 1, 1825, leaving an estate of about $300,000, of which the said Curtis and Clapp were administrators. The widow Elizabeth received

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